Tarun Bhattacharyya vs State Of West Bengal & Ors

This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order dated October 4, 2018 passed by the Secretary, Durgapur M.A.M.C. Township Modern High School (H.S.) being respondent no.4 herein. By this order, the petitioner has been placed under suspension pending further disciplinary proceedings.

It is to be noted that this is the second round of litigation and in the earlier round an order had been passed by this Court on May 20, 2018 directing the respondent authorities to grant an opportunity of hearing to the writ petitioner after submission of a detailed reply by the writ petitioner and thereafter to pass a reasoned order citing the specific violations committed by the writ petitioner with reference to the applicable rules and regulations.

Upon passing of this order, the writ petitioner filed a detailed reply on June 10, 2018 and thereafter a hearing was granted to the writ petitioner by the Managing Committee on July 11, 2018.

Thereafter, on July 25, 2018 petitioner was asked for verification of original mark-sheet/certificate and appointment letters alongwith the photocopies of the same. Subsequently, on October 4, 2018 the impugned suspension letter was issued by the school authorities.

The case of the writ petitioner is that the suspension letter is not in terms of the order passed on May 10, 2018 and is in complete violation of the same.

Mr. Arabinda Chatterjee, learned Senior Counsel, appearing on behalf of the petitioner, vehemently argues that the order of suspension is a cryptic order that does not cite any rules or regulations whatsoever and is therefore a completely non-speaking order. He submits that such an order is in complete violation of the Court's order passed on May 10, 2018 and, accordingly, is liable to be set aside.

Mr. Bari, learned Counsel appearing on behalf of the school authorities, submits that the impugned order was passed based on a resolution taken by the school authorities on October 4, 2018. A copy of the same has been handed over.

He has submitted that the writ petition is not maintainable as the school is a private body and is unaided by the government. He submits that though the school authorities did not take up this point in the earlier writ petition, this being a fresh cause of action, he maintains his right to raise the point of maintainability.

Mr. Chatterjee has vehemently opposed this submission of Mr. Bari and has placed before this Court two judgments of the Calcutta High Court delivered by the co-ordinate Benches in the matters of W.P.19507(W) of 2011 [Becharam Sahu Vs. The State of West Bengal & Ors.] reported in 2013 (3) CLJ (Cal) 215 and W.P.1112 of 2016 [Sri Debabarata Sengupta & Ors. Vs. Eastern Coalfields Limited & Ors.].

With regard to the point of maintainability, one may examine the judgment in Becharam Sahu (supra) that states as follows:

"It is noticed from the facts of the instant case that the writ petitioner had earlier approached this Court by filing a writ petition, being W.P.15850(W) of 2009. A mandatory order was passed by this Court on 17th November, 2009, with certain directions upon the concerned cooperative society. There was no appeal preferred by the concerned cooperative society against the said order dated 17th November, 2009. On the contrary, the concerned cooperative society took benefit of the said order dated 17th November, 2009, and accepted the entire outstanding amount from the writ petitioner and only thereafter withdrew the F.I.R. that had been lodged against the writ petitioner. The point of maintainability, not having been urged by the concerned cooperative society in the earlier writ petition, it is not open now for the said cooperative society to raise the same issue in the instant writ proceeding. Although not in express terms, this point is deemed to have been necessarily decided in the earlier writ petition. Therefore, the principles of res judicata estoppel squarely applies. [See Gregory vs. Molesworth, reported in (1747)3 Atk 626]. That apart and in any event, whether or not a writ in the nature of mandamus can be issued against a cooperative society - not being a "State", as defined under Article 12 of the Constitution of India - is no more res integra in view of the several decisions of this Court, which includes, inter alia, - Bhabani Adhikari v. West Bengal State Cooperative Bank Limited, repoorted in 2009 (1) CHN 573 and Bashirhat Sardarati Tantubay v. The State of West Bengal & Ors., reported in (2012) 2 WBLR (Cal) 675. Therefore, this Court is unable to accept the contention of the learned advocate representing the concerned cooperative society that the instant writ petition is not maintainable."

The same view has also been followed by another coordinate Bench of this Court in the judgment of Debabrata Sengupta (supra).

I see no reason to differ from the above views of the coordinate Benches and, accordingly, hold that the point of maintainability in the second writ petition on the same subject matter when the same was not raised in the earlier writ petition would amount to constructive res judicata and cannot be urged at this stage.

I have gone through the said resolution and once again see that the resolution does not contain any whisper of the rules and regulations that the school is relying upon in support of the suspension order being issued. The resolution, in fact, states that a detailed enquiry shall be carried out by the school authorities and, in the meantime, the writ petitioner should be suspended. It may be noted here that the impugned order dated October 4, 2018 states that the Managing Committee has already held an enquiry as per the Court's order and only after the enquiry the Managing Committee has unanimously considered the reply of the writ petitioner. This statement in the impugned letter is contrary to the resolution of the Managing Committee taken on October 4, 2018.

I have considered the submissions made by the learned Counsel appearing for the parties and perused the materials on records.

In my view, neither the resolution of October 4, 2018 nor the suspension letter of October 4, 2018 is in terms of the order passed on May 10, 2018 by this Court. In fact, the resolution and the impugned letter contradict each other and do not cite any rules or regulations by which the said suspension is being carried out. In view of the same the impugned letter dated October 4, 2018 cannot stand, and is, accordingly, quashed and set aside.

The school authorities are directed to once again grant an opportunity of hearing to the writ petitioner (with prior notice of 24 hours) and to pass a reasoned order in terms of the order passed on May 10, 2018. No further reply is required to be given by the writ petitioner. It is made clear that the writ petitioner has no right to seek adjournment on irrelevant grounds whatsoever.

With the above direction, the writ petition is disposed of.

All parties are to act on the website copy of this order.